United States v. Desnoyers

• Decision Date: 14 February 2013
• Docket Number: Docket No. 11–5194–cr.
• Citation: 708 F.3d 378
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Mark DESNOYERS, Defendant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

708 F.3d 378

UNITED STATES of America, Plaintiff–Appellant,

v.Mark DESNOYERS, Defendant–Appellee.

Docket No. 11–5194–cr.

United States Court of Appeals, Second Circuit.

Argued: Dec. 17, 2012.

Decided: Feb. 14, 2013.

Rajit S. Dosanjh, (Craig A. Benedict, on brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellant, United States of America.

John B. Casey, Dreyer Boyajian LLP, Albany, NY, for Appellee, Mark Desnoyers.

Before: JACOBS, Chief Judge, CALABRESI, and LEVAL, Circuit Judges.

DENNIS JACOBS, Chief Judge:

The United States takes this appeal from the sentence imposed following our reinstatement of a count of conviction dismissed by the district court under Federal Rule of Criminal Procedure 29. The re-sentencing has resulted in imposition of the same term of probation and an increase in restitution of about $10,000.

Desnoyers was convicted by a jury in the United States District Court for the Northern District of New York (Hurd, J.) of offenses arising from his malfeasance as an air monitor for asbestos abatement projects in and around Plattsburgh, New York. The grant of Desnoyers's post-trial motion to vacate Count I—the conspiracy charge—left four substantive violations.

On the government's initial appeal, we reinstated the jury verdict, and remanded for re-sentencing. United States v. Desnoyers (“ Desnoyers I ”), 637 F.3d 105, 112 (2d Cir.2011).

On remand, the district court imposed the same five-year term of probation and increased the restitution amount to $45,398. The government now attacks the procedural and substantive reasonableness of the sentence, arguing mainly that the district court improperly excluded new evidence that was not submitted at the initial sentencing. The government also contests the restitution calculation.

For the reasons that follow, we conclude that the sentence was procedurally unreasonable; we therefore vacate and remand to the district court for re-sentencing.

BACKGROUND

Desnoyers's conviction arose out of his work as an air monitor on ten asbestos removal projects in 2005 and 2006. An air monitor conducts air sampling to ensure that the asbestos was removed properly and that no asbestos fibers remain suspended in the air. See N.Y.S. Indus. Code Rule 56–17.8. The conspiracy count (Count I) that was dismissed post-trial and reinstated after appeal arises from eight asbestos removal projects that Desnoyers conducted together with his codefendants: John Wood, Curtis Collins, and Tom Marble. Wood, Collins, and Marble all testified at trial that abatement at these jobs was performed improperly: The asbestos was ripped out haphazardly causing asbestos fibers to fill the air; the debris was carried out in plastic bags covered in asbestos dust; and chunks of asbestos debris were left in the work area. Marble testified that he never saw Desnoyers take air samples, and Wood testified that Desnoyers assured Wood that the air samples “w[ould] come back clean” immediately after the work concluded. Trial Tr. 316, Sept. 10, 2008. The air samples did, in fact, “come back clean” despite large amounts of loose asbestos littering the properties.

Two other counts of conviction arise from the same “rip and run” pattern: a violation of the Clean Air Act (Count V) at a commercial building in Oneonta, New York, the so-called “Da'Vida” project; mail fraud (Count VI) in connection with a project at the High Peaks Hospice (“Hospice”) in Port Henry, New York; and making false statements to the Environmental Protection Agency (“EPA”) (Counts XII, XIII, and XIV) concerning two of the projects giving rise to the conspiracy count.

The jury verdict, rendered on September 19, 2008, convicted Desnoyers on Counts I, V, VI, XII, and XIII.¹ The district court granted Desnoyers' Rule 29 motion for a judgment of acquittal as to Count I only. United States v. Desnoyers, No. 1:06–CR–494, 2009 WL 1748730 (N.D.N.Y. June 19, 2009).

At sentencing on December 18, 2009, the district court calculated Desnoyers's offense level using the fraud section of the United States Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”), U.S.S.G. § 2B1.1. The court calculated the loss amounts under U.S.S.G. § 2B1.1(b)² as $34,960, which was the contract value of the Hospice and Da'Vida projects plus the estimated clean-up cost for the Hospice; the Da'Vida victim provided no clean-up estimate. This yielded a six-level increase in the base offense level. U.S.S.G. § 2B1.1(b)(1)(C).

The court accepted the Probation Office's recommendations for sentencing enhancementsexcept for a two-level enhancement under U.S.S.G. § 3B1.1(c) for Desnoyers's role as an organizer of conduct involving fewer than five participants. With a total offense level of twenty-one and a criminal history category of I, Desnoyers was subject to a Guidelines range of 37 to 46 months' imprisonment.

A non-Guidelines sentence (five years' probation and $34,960 restitution) was imposed on the grounds that Desnoyers was a “novice in the asbestos removal business,” that he had been “duped and misled” by Wood and Collins, Sentencing Tr. 26, Dec. 18, 2009, that he was doing creditable work at the New York State Department of Mental Retardation and Developmental Disabilities helping disabled people get services, and that he had performed similar work at the Advocacy Resource Center.

On the government's appeal, we reversed the grant of the Rule 29 motion and remanded with instructions “to reinstate the jury verdict, enter a judgment of conviction on the conspiracy count, and resentence Desnoyers accordingly.” Desnoyers I, 637 F.3d at 112.

Before re-sentencing, the government provided the Probation Office with loss amounts for the victims of the eight projects listed in the reinstated Count I. These loss amounts included victims' payments for the improper asbestos removal and clean-up cost estimates. Most of this information had been provided to the district court for the November 2009 sentencing of Wood, who was also convicted on Count I. However, one estimate was new: One victim, Nancy Page, provided a bid for $19,800. The government also provided new information relevant to the loss amounts for Counts V and VI: The Da'Vida victim provided clean-up bids totaling $43,786, and High Peaks Hospice increased its clean-up total by $2,500. All of this new information submitted by the government would have brought Desnoyers's total loss amount to $213,732.23.

The government also submitted new affidavits from people who knew Desnoyers from the Advocacy Resource Center and had contacted the government after hearing news reports of Desnoyers's first sentence: Lester Parker and Theresa Garrow. The Parker and Garrow affidavits—which referred to events that took place both before and after the original sentencing—called into question Desnoyers's account of his work at the Advocacy Resource Center. The government also submitted a “joint letter” dated September 16, 2011, sent by employees of the Advocacy Resource Center to the director of Sunmount Developmental Disability Services Organization, where Desnoyers worked as a Medicaid Services Coordinator, detailing problems they had with Desnoyers. The joint letter referred only to conduct that took place after the first sentencing. At a telephone conference on October 11, 2011, the district court ruled that it would not consider evidence of events that took place before the initial sentencing because there was insufficient justification for the government's failure to introduce that evidence at the first sentencing. Telephone Conf. Tr. 14, Oct. 11, 2011. Evidently confused about the import of that ruling, the government did not submit these documents at re-sentencing.

Desnoyers was re-sentenced on October 28, 2011. First, the loss amounts were recalculated, taking into account the reinstated conviction for the eight projects that were the subject of Count I. However, the government's suggested loss amounts were not adopted. Instead, the court decided that Desnoyers's loss amount for Count I “should be no more than the [restitution] amount ordered for co-defendant John Wood,” which was $111,259.83. Re-sentencing Tr. 8, Oct. 28, 2011. The court refused, without further explanation, to consider the clean-up estimate that Ms. Page submitted subsequent to Wood's sentencing. After making several other rulings on the loss amount that are not at issue on appeal,³ the district court calculated the loss amount for Count I as $80,245.83.

Next, the district court “decline[d] to consider additional expense claims, clean-up quotes, submitted by victims with regards to [Counts V and VI] that had not been submitted by the government prior to [Desnoyers's] original sentencing.” Id. at 10–11. The resulting total loss amount on all counts was $115,205.83. Again, the court applied all the recommended enhancements except as to Desnoyers's role as an organizer.⁴ This resulted in a total offense level of 25 and a Guidelines range of 57 to 71 months' imprisonment.

Despite a Guidelines range that was substantially higher than the one computed at the original sentencing, the district court sentenced Desnoyers to the same five-year term of probation. The district court found that Desnoyers's “conduct is unchanged from that which was evaluated and considered at the time of the original sentence,” and that “[i]n the nearly two years since that sentence, the defendant has been in full compliance with the terms and conditions of probation.” Id. at 21. The court also considered the factors under 18 U.S.C. § 3553(a), relying on “all of the statements that [it] made on the record at the original sentence.” Id.

As for restitution, the district court began with the $34,960 figure from Desnoyers's original sentence, finding that this amount was appropriate for the projects underlying Counts V and VI—without, however, discussing the upward revisions submitted by the government for those...